Symmetries and differences: Transatlantic international law forum

24-07-2013 Feature

British soldiers find their actions abroad subject to scrutiny by a very different international legal regime than American soldiers fighting as allies in the same war, say military lawyers and academics.

The impact of international human rights legislation (IHRL) on military actions varies dramatically from country to country, posing complicated questions for commanders leading multinational coalitions, and for the lawyers advising them on what law applies and what conduct is permissible on the battlefield.

The challenge of how IHRL might apply in conflict, alongside or in addition to international humanitarian law (IHL), was a focus of discussions between top US and UK military lawyers, academics and government legal figures at an Oxford workshop last week.

While the broad remit was to consider the interplay between IHL and IHRL, the group looked more specifically at issues such as the classification of conflicts, which is a determinant of what legal regime applies. What laws cover military operations against armed groups operating across borders? And could State actions against armed criminal groups that are so aggressive and well-armed that they have supplanted government authority be governed by war-fighting rules rather than a policing and law-enforcement approach? The group also looked at what legal responsibilities States might acquire under IHL or IHRL when they are training or mentoring the armed forces of another State – would the training State become accountable for rights violations at some point?

The ICRC has a mandate to strengthen respect for IHL and foster development of this area of law, which its mission in London undertakes in part by supporting such workshops.